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AND AN ANSWER 



TO 



EX-JUDGE CURTIS' PAMPHLET, 



ENTITLED 



^1 . "EXBOUTIYE POWER 




SECOND EDITION, WITH ADDITIONAL NOTES. 



/ 

BY GROSVENOR P. LOWREY, 

A MEMBER OF THE NEW-YORK BAR, 



NEW YORK: 
G. P. PUTNAM 



1863. 



t 









PREFACE 



In the first edition of this pamphlet was published the 
Emancipation Proclamation of Sept. 22, 1862 ; but the 
interest of that document is now merged in its successor, 
of Jan. 1, 1863, which we print in its place : 

BY THE PRESIDENT OF THE UNITED STATES. 

A PROCLAMATION. 

Whereas, on the twenty-second day of September, in the year of 
our Lord one thousand eight hundred and sixty-two, a Proclamation 
was issued by the President of the United States, containing among 
other things; the following, to wit : 

*' That, on the first day of January, in the year of our Lord one 
thou?and eight hundred and sixty-three, all persons, held as slaves, 
within any state, or designated part of a state, the people whereof 
shall then be in rebellion against the United States, shall be then, 
thenceforth, and forever free ; and the Executive Government of the 
United States, including the military and naval authority thereof, 
will recognize and maintain the freedom of such persons, and will do 
no act or acts to repress such persons, or any of them, in any effort 
they may make for their actual freedom : That the Executive will, 
on the first day of January aforesaid, by proclamation, designate the 
states and parts of states, if any, in which the people therein, respect- 
ively, shall then be in rebellion against the United States, and the fact 
that any state, or the people thereof, shall on that day be in good 
faith represented in the Congress of the United States by members 
chosen thereto at elections wherein a majority of the qualified voters of 
such states shall have participated, shall, in the absence of strong 



IV PREFACE. 

countervailing testimony, be deemed conclusive evidence that such 
state, and the people thereof, aro not then in rebellion against the 
United States." 

Now, therefore, I, Abraha:vi Lincoln, President of the United 
States, by virtue of the power in me vested, as Commander-in-Chief 
of the Army and Navy of the United States, in time of actual armed 
rebellion against the authority and government of the United States, 
and as a fit and necessary war measure for suppressing said rebellion, 
do, on this first day of January, in the year of our Lord one thousand 
eight hundred and sixty-three, and in accordance with my purpose so 
to do, publicly proclaimed for the full period of one hundred days from 
the day of the first above-mentioned order, declare and designate, as 
the states and parts of states wherein the people thereof respectively 
are this day in rebellion against tlie United States, the following, 
to wit: 

Arkansas, Texas, Louisiana — except the Parishes of St. Bernard, 
Placquemines, JeiFerson, St. John, St. Charles, St. James, Ascension, 
Assumption, Terre Bonne, Lafourche, St. Mary, St. Martin, and 
Orleans, including the City of New Orleans — Mississippi, Alabama, 
Florida, Georgia, South Carolina, North Carolln'a, and Vir- 
ginia — except the forty-eight counties designated as West Virginia, 
and also the counties of Berkley, Accomac, Northampton, Elizabeth 
City, York, Princess Ann and Norfolk, including ^the cities of Nor- 
folk and Portsmouth, and which excepted parts, are for the present, 
left precisely as if this proclamation were not issued. 

And, by virtue of the power and for the purpose aforesaid, I do 
aver and declare that all persons held as slaves within said designated 
states and parts of states are, and henceforward shall be, free, and 
that the Executive Government of the United States, including the 
military and naval authorities thereof, will recognize and maintain 
the freedom of said persons. 

And I hereby enjoin upon the people so declared to be free, to 
abstain from all violence, unless in necessary self-defence, and I 
recommend to them that in all cases, when allowed, they labor faith- 
fully for reasonaljlc wages. 

And I further declare and make known that such persons of suita- 
ble condition, will be received into the armed service of the United 



PREFACE. V 

States, to garrison forts, positions, stations, and other places, and to 
man vessels of all sorts in said service. 

And, upon this — sincerely believed to be an act of justice, war- 
ranted by the Constitution, upon military necessity — I invoke the 
considerate judgment of mankind and the gracious favor of Almighty 
God. 

In vi^itness whereof, I have hereunto set my hand, and caused the 
seal of the United States to be affixed. 

Done at the City of Washington, this first day of January, in 
the year of our Lord one thousand eight hundred and sixty- 
three, and of the independence of the United States of 
America the eighty-seventh. 

ABRAHAM LINCOLN. 
By the President : 

William H. Seward, Secretary of 'State. 



" But what a bottomless slough of absurdities, are even honest men 
compelled to swelter in, when once they have put their hand in that 
of slavery, and allowed themselves to be led by it ! * * * 

Only one act, it seems, imposed by the terrible exigencies of war, is 
unconstitutional, and that is, the destruction of its cause, slavery ! 
No wonder that the great heart of the world swells with a suppressed 
shout of derision at such acumen and statesmanship." — From '•'•The 
Birth and Death of Nations,^' a pamphlet by James McKaye, Esq. 



" Judge Curtis' argument would give the Constitution and the law 
to the rebels, as their sword to smite with, and their shield to save 
them ; and leave it to us only as a fetter/' — Extract from Professor 
Par soils' Letter to the Boston Daily Advertiser. 



THE COMMANDER-IN-CHIEF. 



When Congress, at tlie last session (1862), urged by a 
great necessity and the irresistible pressure of coming events, 
passed the bill knoAvn as the Emancipation Act, there arose 
all over the land a loud cry of remonstrance, coming mostly 
from timid patriots and bold sympathizers with rebellion. 
With some difficulty it was made to appear from the inco- 
herent utterance that the national legislature had exceeded 
its constitutional functions, and usurped a power which could 
be exercised lawfully by the President acting as Commander- 
in-chief in time of war alone. So confident were the ene- 
mies of the policy of that measure, that it would never be 
acted upon by Mr. Lincoln, that they did not consider it ne- 
cessary to deny the existence of such a power somewhere, and 
therefore fully admitted that it belonged to him as a war power. 
When, at last, he became of like mind, and issued his proc- 
lamation to that effect, great political contests were in prog- 
ress in the various States, and the most bitter opposition was ar- 
rayed against it ; but, although men of legal eminence were 
found among its adversaries, it entered no man's mind to 
question it upon legal grounds, until Ex- Judge Curtis, by 
his pamphlet, entitled " Executive Power,'' made that issue 
before the public. If Judge Curtis's loyalty is great, which 
I know no reason to doubt, so must his mortification have 
been great, to see how eagerly his ingenious argument Avas 
seized upon, and how comforting it has proved to all the no- 
toriously disloyal among us. 

The avowed object of that pamphlet is, not alone to ques- 
tion the power of the President to . emancipate the slaves of 
rebels, but to warn the American people against encroach- 
ments upon their civil liberties, by various alleged abuses of 
those vast powers belonging in time of war to the Comman- 
der-in-chief of the army and navy. Had the occasion not 



8 THE COMMANDER-IN-CHIEF. 

been sucli that greater danger was to be apprehended* from 
disturbing the public confidence in the government than from 
any present usurpation by it, good men might find it more 
easy to sympathize Avith the distinguished writer. 

Impressed by a strong conviction that it is not alone from 
the side to which Judge Curtis' warning points that dangers 
threaten the cause of Christian progress, as it is illustrated 
in our social and political forms, I have felt it an imperative 
duty to give whatever thought has been given me upon the 
grave subject discussed by him. 

The proclamation of Sept. 22, 1862, commonly known as 
the Emancipation Proclamation, the proclamation of Sept. 
24, 1862, and the orders of the Secretary of War, promul- 
gated Sept. 26, 1862, furnish the occasion and subject for his 
criticism. It is his opinion that it is not within the lawful 
authority of the President to issue and carry out these proc- 
lamations and orders. 

It will be seen by the careful reader, that, notwithstanding 
the two proclamations are essentially different in purpose, 
character, and proximate motive, they are so indiscriminately 
treated by him, as to make it sometimes difficult to know, to 
which the arguments of the ingenious Avriter refer ; it will 
also be seen, as has well been said by Prof. Parsons, in his 
letter to the Boston Daily Advertiser, that there are, touch- 
ing the Emancipation Proclamation, three questions only. 
First : Had the President, as the civil executive, constitu- 
tional power to issue it ? Second : Granting he had the 
power, was it expedient to use it ? Third : Has he power, 
as Commander-in-chief, to issue it at this time, as an act of 
war ? These three questions, again, are so^ indiscriniinately 
treated, as sometimes to mislead, and sometimes confuse the 
reader. 

This is, perhaps, the consequence of a desire, on the part 
of Judge Curtis, to bring the discussion within a convenient 
space ; but such a purpose should be kept subordinate to the 
higher object of arriving at just and true conclusions. 

Of the proclamation "denouncing interference with enlist- 
ments; and of the orders of the Secretary of War, establishing 
a provost-marshal system through the country, it is not my 
purnose to say more, than that they were probably intended 
as measures of military police, and were conscientiously con- 



THE COMMANDER-IN-CHIEF. 



4* 

ceived to be necessary. At least, they had their origin in the 
paternal and benevolent desire of Mr. Lincoln to protect us 
from the evil agencies of treason ; and no man has dared to 
charge that any unworthy motive has caused the arrests and 
detentions which are complained of.^^ 



* At the publication of the first edition of this pamphlet, it was considered 
best to keep the discussion within about the space occupied by " Execu- 
tive Power." For that reason, the text was written as it stands, and not 
because the writer would be understood as admitting any shadow of foun- 
dation for the traitorous clamors against the government which have 
filled the air. Since that writing, the in-coming chief magistrate of a 
great state has declared, with significant inuendo, '' The first law re- 
corded for my observance is that, declaring that ' it shall be the duty of 
the governor to maintain and defend the sovereignty and jurisdiction of 
the state.' " There are those who regard this as the expression of an 
intention to provoke a conflict between the state and federal authori- 
ties. If this is so, the subject of " arrests and detentions" is likely to 
acquire new importance, and in default of ability on my part to give the 
matter a better treatment, I copy the following from a most complete 
and admirable work, by William Whiting, Esq., of Boston, entitled, " The 
War Powers of the President," &c., which has lately appeared. 

" What is the extent of the military power of the President over the 
persons and property of citizens at a distance from the seat of war — 
whether he or the war department may lawfullj^ order the arrest of citi- 
zens in loyal states on reasonable proof that they are either enemies or 
aiding the enemy — or that they are spies or emissaries of rebels sent to 
gain information for their use, or to discourage enlistments — whether 
martial law may be extended over such places as the commander deems 
it necessary to guard, even though distant from any battle-field, in order 
to enable him to prosecute the war effectually — whether the writ of 
habeas corpus may be suspended as to persons under military arrest, by 
the President, or only by Congress (on which point judges of the United 
States courts disagree) — whether, in time of war, all citizens are liable 
to military arrest, on reasonable proof of their aiding or abetting the 
enemy — 'Or whether they are entitled to practise treason until indicted 
by some grand jury — thus, for example, whether Jefferson Davis, or Gen- 
eral Lee, if found in Boston, could be arrested by military authority and 
sent to Fort Warren ? Whether, in the midst of wide-spread and terrific 
war, those persons who violate the laws of war and the laws of peace, 
traitors, spies, emissaries, brigands, bushwhackers, guerrillas, persons in 
the free states supplying arms and ammunition to the enemy, must all be 
proceeded against b)'" civil tribunals only, under due forms and precedents 
of law, by the tardy and inefiectual machiner}^ of arrests by marshals 
(who can rarely have means of apprehending them), and of grand juries 
(who meet twice a year, and could seldom, if ever, seasonabl}' secure the 
evidence on which to indict them) ? Whether government is not enti- 
tled by military power to prevent the traitors and spies, by arrest and 
imprisonment, from doing the intended mischief, as well as to punish 

1- 



IQ THE COMMANDER-IN-CHIEF. 

Of the Proclamation of Emancipation, I shall endeavor to 
show that it is a lawful and necessary measure of war. 

Before setting out upon the argument before us, however, 
it is important to review the peculiar character and purpose 
of this war, and the situation in which it finds us. 

The true and real life of a nation is the political idea upon 
which it is based. The ideas of our goverimaent are. Liberty 
and Unity. The form of a government is entitled to greater 
or less respect, according as it, in a higher or less degree, con- 
serves the governmental idea. The Constitution, which is 
the form of our national government, has been justly admired 
and revered, because it has proved itself well adapted--until 
treason assailed it by force— to preserve and perpetuate liberty 
and unity. But that noble instrument is not the cause, but 
the oneans of American freedom. The charter of our free 



them after it is done ? "Wlietlier war can be carried on successfully, 
without the power to save the army and navy from being betraj'ed and 
destroyed, by depriving any citizen temporarily of the power of acting as 
an enemy, whenever there is reasonable cause to suspect him of being 
one ? TV'hether these and similar proceedings are, or are not, in violation 
of any civil rights of citizens under the Constitution, are questions to- 
which the answers depend on the construction given to the war powers 
of the Executive. Whatever any commander-in-chief, in accordance with 
the usual practice of carrying on war among civilized nations, may order 
his army and navy to do, is within the poicer of the President to order 
and to execute, because the Constitution, in express terms, gives him the 
supreme command of both. If he makes war upon a foreign nation, he 
should be governed by the law of nations ; if lawfully engaged in civil 
war, he may treat his enemies as subjects and as belligerents. 

"The Constitution provides that the government and regulation of the 
land and naval forces, and the treatment of captures, should be according 
to law ; but it imposes, in express terms, no other qualification of the 
war power of the President. It does not prescribe any territorial limits, 
within the United States, to which his military operations shall be re- 
stricted; nor to which the picket guard, or military guai-ds (sometimes 
called provost marshals) shall be contined. It does not exempt any person 
making war upon the country, or aiding and comforting the enemy, from 
being captured, or arrested, wherever he may be found, whether within 
or out of the lines of any division of the army. It does not provide that 
public enemies, or tlieir abettors, shall lind safe asylum in any part of the 
United States where military power can reach them. It requires the 
President, as an executive magistrate, in time of peace to see that the 
laws existing in time of peace are faithfully executed— and as com- 
mander-in-chief, in time of war, to see that the laws of war are executed. 
In doing both duties he is strictly obeying the Constitution." 



THE COMMANDER-IN-CHIEF. H 

system of laws is the Constitution, but the charter of the 
Constitution is, the purposes for which it was erected, and 
which are thus declared in the preamble : " We, the people of 
the United States, in order to form a more perfect union, es- 
tablish justice, insure domestic tranquillity, provide for the 
common defence, promote the general welfare, and se- 
cure the blessings of liberty to ourselves and our posterity, 
do ordain and establish this Constitution for the United 
States of America." 

Ordinarily, the mind stops at the Constitution, as the 
Alpha and Omega of American liberty ; and it is eminently 
safe, judicious, and proper, that this should be the rule of 
argument when questions arising from or under the Consti- 
tution are being considered. 

Such would be all questions touching the laws, their ad- 
ministration, the powers and functions of Congress, and of 
the President. The proximate source of light, and authority 
for all such questions, is the Constitution. But where the 
Constitution itself is the subject of consideration, and the 
question is, shall it exist or cease, and the President finds his 
powers, as its military champion, challenged, the mind looks 
instinctively through the Constitution to that broader char- 
ter upon which it rests. And this it does, not for the pur- 
pose of finding a '^higher law'' which shall contradict or 
thwart the Constitution (dangerous fallacy), but a higher law 
which shall sustain and be in agreement with it. 

But to return to the situation : a great people finding 
themselves in possession of a great and vital political idea, 
have devised a scheme for its protection and perpetuation. 
This scheme is the Constitution. A part of the policy 
of this scheme is to create a civil office, of supreme ex- 
ecutive functions, the incumbent of which is called the Pres- 
ident. 

This office is artificial and original with the Constitution. 
Being so, it is necessary that the charter which creates it, 
should also limit and define its duties and powers. This is 
easily done, for it is in the nature of civil powers and duties, 
that they may be defined and limited in advance. For, they 
are supposed to be exercised, as a part of an orderly system 
in the midst of order ; and, therefore, it is that the powers 
and duties of the civil Executive are clearly set forth. 



12 THE COMMANDER-IN-CHIEF. 

Of the acts of the President, therefore, constitutionality 
and unconstitutionality may be predicated. 

The authors of this scheme, deeming it necessary, also, to 
provide means of defence against hostile force, authorized 
the Congress '^ to raise and support armies," and "to pro- 
vide and maintain a navy/' Now, as military enterprises 
are eminently executive in their character, it is necessary that 
armies shall he under the control of some person chief in 
command, who shall become the depositary for the time being, 
within the sphere of his command, of all the war powers, 
rights, and discretion, which belong to the nation. It is, 
therefore, provided that the person who shall from time to 
time be President, shall also be Commander-in-chief of the 
army of the United States, and of the militia of the several 
States when called into the service of the United States. 
The office of Commander-in-chief is not original with the 
Constitution ; but has existed and been recognized from the 
earliest history of civilized warfare. Its functions are to be 
performed after disorder has partially or completely over- 
turned the civil power, and produced circumstances, the char- 
acter of which cannot be foreseen. They are, for that reason, 
indefinable in advance, excejit in these general terms : that 
the Commander-in-chief, in time of war, is authorized and 
bound to use any and all accessible means not forbidden by 
the laws of war, which in his judgment may be useful or ne- 
cessary to subdue the enemy. The Constitution having thus 
recognized this necessary office, and declared that the Presi- 
dent shall be its incumbent, leaves the matter there. The 
duties which a Commander-in-chief may be called upon to 
perform, under the laws of war, are the just and sole measure 
of his powers ; that is to say, he is given power equal to the 
demands of his duty. These powers it is impossible to de- 
clare in advance ; such as they are, they inhere in the eter- 
nal frame of things. 

Constitutionality and unconstitutionality cannot, therefore, 
be predicated of the acts of the Commander-in-cliief. 

We may say of them, that they are lawful or unlawful, 
l)ut the tests are military law and the necessities of the occa- 
sion. 

The Constitution creates the Presidency, and instructs and 
binds the President ; l)ut it only recognizes the necessity that 



THE COMMANDEK-IN-CHIEF. 13 

some person shall have chief command, and provides the per- 
son to meet the necessity ; but neither instructs nor binds 
him to any duty, or the manner of performing any duty. 
The President, then, is a constitutional officer, and his func- 
tions are constitutional ; he is, also, constitutionally the 
Commander-in-chief, but his functions as such in time of war 
are extra-constitutional. If these two offices were held by 
different j)ersons, the distinction would be plain to all ; but, 
their joinder in the same person, tends to confuse the mind 
without essentially altering the case. I do not, by the phrase 
^^extra-constitutional,"" mean to intimate that any person in 
this government can, under any circumstances, lawfully exer- 
cise any power which contradicts, varies, or in the least dero- 
gates from, the Constitution. To attempt such a thing would 
be moral treason. But, upon the outbreak of war, the na- 
tion, in its character as a nation, receives and deposits with 
its military executive vast accessions of rights and powers, 
under the laws of nations ; simplest among which, is the right 
to kill. These rights, with us, are the faithful allies of the 
Constitution, fighting with and for, but never against its 
spirit or letter. Though they are the faithful friends and 
servants of the Constitution, they are not constitutional 
powers ; and I am compelled to call them extra-constitutional 
for want of a better name. 

The political situation being such as has been described, 
the nation finds itself attacked. The attack is from within 
and not from without, which is the same as to say, not by 
persons claiming to be injured by any act of bad neighbor- 
hood, but by persons discontented with the internal form or ad- 
ministration of the governmental idea. The peril is not 
merely loss of territory, or the payment of tribute to a con- 
queror, but absolute privation of national life. In such a 
war the Commander-in-chief is called upon to act ; and as 
has already been said, his powers are, under the laws of war, 
to be measured by his duties, and his duties by the necessities 
of the occasion. The necessity is to preserve the national 
life ; the duty is to use all requisite means, not forbidden by 
the laws of nations, and the poiver and authority strike their 
roots deep into that first maxim of human language, " self- 
preservation is the first law of nature.'" 

The peculiar character and purpose of this war is thus al- 

2 



14 THE COMMANDER-IN-CHIEF. 

luded to, not because it is supposed to give the nation, or 
their representative and depositary for the time, any powers 
which he would not have in a foreign war ; but because they 
justify and demand the extremest exercise of all the powers he 
has. As to our rights, they are greater than they would be 
against a foreign enemy, for a sovereign nation engaged in 
the duty of suppressing an insurrection of its citizens may, 
with entire consistency, act in the tivo/old character of sov- 
ereign and helligerent. (Upton's Mar. War and Prize, 212 ; 
Marshall, Ch. J., Kose v, Humilly, 4 Cranch, 272. See opin- 
ion of Sprague, J., in case of the prize-shij) Amy Warwick, 
Boston, 1862 ; and opinion of Cadwalader, J., in case of 
prize-ship General Parkhill, Philadelphia, 1861.) " Against 
those whom the law cannot reach,'' says Demosthenes, ^' we 
must proceed as we oppose our public enemies, by levying 
armies, equipping and setting afloat navies, and raising con- 
tributions for the lU'osecution of hostilities." (Grotius, Pro- 
legom. § 23.) But, unlike other enemies, they may, when our 
arms have prevailed against them, be brought to suffer under 
the municijjal law as criminals ; indeed, there is no other 
way to punish treason, excej^t in the manner pointed out by 
the Constitution. Even Jeff. Davis has, remaining to him, 
the right to be constitutionally hung. 

It would have been better to have stated sooner what shall 
now be observed once for all, that the duties of the Com- 
mander-in-chief are divisible into two classes : those rou- 
tine duties, fixed by law under the authority to Congress to 
"raise and support armies," such as organization of the 
army, appointment of oflacers, &c., which belong equally to 
peace and war ; and those other undefined duties which arise 
only in time of war. This first class, of routine duties, relates 
to the citizen, and can be foreseen and provided for by the 
sovereign legislative power ; the second class arises out of the 
acts of the enemy, relates to him and his abettors, cannot be 
foreseen, and is left to be governed by the laws of war. The 
fundamental fallacy of Judge Curtis' pamphlet is, that he 
utterly confounds these two classes of powers, as well as the 
diff(^rence between the rules applicable in war to the citizen, 
and those applicable to the enemy. 

It is these latter powers and duties only, which are intended 
to be described as extra-constitutional. 



THE COMMANDER-IN-CHIEF. 15 

The laws and rights of war which belong to the nation, 
and are for our use temporarily vested in the Commander- 
in-chief, are declared by Burlamaqui (Prin. of Nat. & Pol. 
Law, vol. ii., ch. 5), who cites Grotius, to be substantially con- 
^ tained in the following rules : First — Everything which has a 
connection morally necessary to the end or object of the war 
is permitted. For it would be to no purpose to have aright 
to do a thing if we could not make use of the necessary 
means to bring it about. Second — The right we have against 
our enemy, and which we pursue by arms, ought not to be 
considered only with respect to the cause of the war, but also 
with respect to such fresh causes as may arise during its prog- 
ress. Third — A great many things otherwise unlawful 
are yet permitted, because they are the inevitable conse- 
quences of war, and are supposed to happen contrary to our 
intention. 

Under these general rules, many particular maxims range 
themselves. 

Every war is supposed to be defensive in its principles, 
though it is offensive in its policy, as where attack is the best 
method to repel threatened invasion ; and he who first ren- 
ders force necessary is the aggressor, though he may not be 
the first who applies it. (Yattel, b. 3, c. 6, §§ 91, 100.) 

For the purpose of defence, a nation is free to use against 
the enemy, violence and terror, which are the proper charac- 
teristics of war, ad infinitum, until it has repulsed the 
threatened danger and obtained security for the future. (Bur- 
lamaqui, ib.) 

We may employ strategy and artifice, provided it be with- 
out treachery or breach of promise. We may also appro- 
priate the enemy's goods, public and private, if we can 
thereby weaken him or strengthen ourselves ; for, says Cicero, 
"it is not against the law of nations to plunder a person 
whom we may lawfully kill.'' (Cic. de. Off. lib. 3, ch. 4.) ^ 

We may suspend his civil government,. and establish mili- 
tary rule in its place, for the management of civil affairs. 
(Letter of Pres. Polk to the Sec. of the Treas., on the sub- 
ject of mil. contributions, March 23, 1847. Fleming v. Page, 
9 How., 603.) 

We may seize upon private property, by way of penalty 
for the illegal acts of individuals, or of the community to 



16 THE COMMANDER-IN-CHIEF. 

which they belong. So, also, if the offence attach to a com- 
munity or town, all the individuals of that community or 
town are liable to punishment, and we may either seize their 
projDcrty, or lev)^ upon them a retaliatory contribution, by 
way of penalty. (Hall. Int. L., 458. See Scott, Proc. in 
Mexico, Ap. 11, 1847 ; Cong. Doc, 30th Cong., 1 sess., Ex. 
Doc, No. 56, p. 127.) 

There may be cases of necessity, so pressing even, that the 
care of our own presei^^^ation will oblige us to the extremity 
of putting to death prisoners-of-war, which, under any other 
circumstances, would be absolutely criminal. (Burlamaqui, 
ib.) 

The state of war into which the enemy has put himself, 
permits us also to take advantage of any occasion or dispo- 
sition which we may find in his subjects, or any one of them, 
to commit treason against him. For we are no more obliged, 
strictly speaking, to respect the right he has over his subjects 
and dependants, and the fidelity they owe him as such, than 
their lives and fortunes, of which we may certainly deprive 
them by right of war. And it is to be observed, that the 
law of nations allows much difference between a fair and le- 
gitimate enemy, and rebels, pirates, and highwajTnen. The 
most religious princes make no difficulty to proj)ose even re- 
wards to those who will betray such persons ; and the public 
odium under which men of this stamp lie, is such, that no- 
body thinks the measure hard, or blames the conduct of the 
prince, in using every method to destroy them. (Burl., vol. 
ii., ch. 6, §§ 18, 21, 24.) 

He who is engaged in war derives all his right from the 
justice of his cause. Whoever, therefore, takes up arms 
without lawful cause, can absolutely have no right whatever ; 
every act of hostility which he performs is a crime. He is 
guilty of a crime against the enemy, and against his own 
i:)eople, whom he forces into acts of injustice, and who lose 
their lives and property ; and, finally, he commits a crime 
against mankind in general, whose peace he disturbs, and to 
whom he sets a pernicious example. (Vattel, b. 3, ch. 9, 
pi. 183, 184.) 

Many incidents follow war which are misfortunes, and are 
not properly chargeable to the aggressive party. Thus, the 
brutal license of soldiers, which is sometimes shown after the 



THE COMMANDER-IN-CHIEF. 17 

capture of a town, is to be regretted, but the possibility that 
it might transpire would be no argument against capturing 
the place. Burlamaqui further illustrates the same idea by- 
saying that we may attack a ship full of pirates, though 
there be women, children, and other innocent persons on 
board. 

Assuming it to be clear, ftom the foregoing observations 
that, while the Commander-in-chief is a constitutional offi- 
cer, his war functions are derived fron^the broad code of war ; 
and that the general principles of that code have been made 
sufl&ciently intelligible for our present purpose ; and it being 
borne in mind that the war is upon our part a struggle for 
national life, and the principles of government which under- 
lie the Constitution ; and that the enemy, who have made 
war without cause, are also rebels and traitors, against whom 
the law of nations permits the utmost stretch of all the char- 
acteristics of war ; we are in a situation to proceed to a more 
intelligent examination of Mr. Lincoln's Proclamation of 
Emancipation, and Judge Curtis's argument against it. 

It must be insisted, -at the outset, however, that one broad 
and vital distinction, which it would seem Judge Curtis pur- 
posely ignores, shall be kej)t constantly in sight. 

It is, that no man can, at the same time, be our enemy^ 
deserving our utmost wi-ath, and a friend, entitled to our sup- 
port and protection. Rebels in arms against the Constitu- 
tion^ must not he spoken of, as men havi7ig constitutional 
rights. The whole scheme of Judge Curtis' argument seems 
grounded in a studied confusion of these two classes of per- 
sons ; and such a solecisin, at such a crisis, becomes almost 
a crime. Let it then be borne in mind, that, while the loyal 
citizen retains all his constitutional and legal rights, as in 
peace, the armed rebel, having voluntarily withdrawn from 
the protection of the Constitution and submitted himself to 
the arbitrament of war, has the same rights as any traitorous 
public enemy and parricide — no more. 

The proclamation will be found, upon examination, to 
treat of subject-matters coming within its author's functions 
as President, his war powers as Commander-in-chief, and 
his routine or peace duties as Commander-in-chief. It com- 
mences — "I, Abraham Lincoln, President of the United 



J8 THE COMMANDER-IN-CHIEF. 

States^ and Commander-in-chief of the army and navy 
thereof, do hereby proclaim and declare, that hereafter, as 
heretofore, the war will be prosecuted for the object of prac- 
tically restoring the constitutional relations between the 
United States and the people thereof, in such states as that 
relation is or may be susj)ended or disturbed/' 

Subordinate to this general declaration, and in accordance 
with this general purpose, he proceeds to announce his inten- 
tion to recommend, as President, the adoption of certain 
measures by Congress f as a routine duty of the Commander- 
in-chief, he promulgates an article of war, and calls atten- 
tion to an act of Congress. But the important -portion of 
the proclamation is that, wherein he, as Commander-in- 
chief, embodying all the executive war powers and rights of 
the nation, as in his office of President he embodies the ele- 
ment of their civil executive sovereignty, declares that from 
a certain day all persons held as slaves in states or portions 
ol states, the people whereof shall then be in rebellion, shall 
be thenceforward and forever free. 

The first question concerning this remarkable claim to 
power is — Has he, as civil executive, " the constitutional au- 
thority required ? To this the unequivocal answer is — No ! 
Second — Had he the power, as Commander-in-chief, to issue 
the proclamation at this time as an act of war ? Third — Hav- 
ing the power, was it expedient to exercise it ? 

Let us not lose sight of what it is he purposes to do ; it is 
to restore the constitutional relations between the United 
States and the people thereof, in certain insurgent districts. 
More than this he has no right or occasion to do, and suc- 
ceeding in this, his duty will be fully performed. 

What, then, were these constitutional relations which are 
now suspended or disturbed. They were, the obligation and 
privilege to join in a common government ; the obligation and 
right of common defence ; the duty to obey and the right to 
enjoy protection under the supreme law of the land. 

But was ownership in horses one of the constitutional re- 
lations between the states ? No. But it was a right, nev- 
ertheless, and its chief protection was the Constitution, 
though that instrument contains no mention of it. 

Was ownership in slaves one of the Constitutional rela- 
tions referred to ? 



THE COMMANDER-IN-CHIEF. 19 

Guided by the same principle, we answer, No ! But it 
was a right, nevertheless, enjojdng the same kind and degree 
of protection. Though often carelessly spoken of as a con- 
stitutional right, it had no special constitutional warrant, 
over any other property right, but rested under the same 
general provision which reserves to the states all powers for 
the regulation of their local concerns not granted to the 
general government. The same provision protected or per- 
mitted the protection in Georgia of the right to life, the 
right to own horses, and the right to own slaves. Constitu- 
tionally, neither could be said to have a higher warrant than 
the other ; but the two former had high natural and tradi- 
tional authority which the latter lacked. Yet the privation 
of those two by force in time of war is not generally consid- 
ered unconstitutional, or a disturbance of constitutional rela- 
tions. But slavery is said to be a peculiar institution, and 
it is so in this respect, at least, that having a narrower char- 
ter of right, it claims a broader protection and privilege than 
the others. It is necessary to test this claim. 

Let us suppose an analogous peculiar institution : If, in 
Georgia, there existed by state law a right of property in un- 
reclaimed wild animals, such as the law calls ferce, naturcBy 
would it, in time of war, and as a measure of harm to their 
hostile owners, be unconstitutional to kill or entice away 
those beasts ? Clearly not. It appears, then, that it is not 
necessary to the restoration of constitutional relations that 
the dead killed by us in battle, and who had a constitutional 
and natural right to life, shall be restored ; nor that the 
horses seized by us for military purposes from citizens of re- 
bellious communities, and which were owned by natural, and 
protected by constitutional law, shall be returned ; nor that 
the animals ferce naturce shall be returned to the state, 
place, and ownership, from which they were taken. How is 
it, then, that slaves, who are certainly held by a lower ten- 
ure than horses, and precisely the same tenure as the wild 
animals in the suppositious case, must alone be kept in the 
status in which the war finds them, under penalty that by 
the disturbance of the relation between them and the owners, 
some incurable fracture of constitutional relations will take 
place. The reductio ad ahsurdum seems the only process 
known to logic which is adequate to deal with this anomalous 
claim. • 



20 THE COMMANDER-IN-CHIEF. 

It seems clear, then, that the President will not necessarily 
find Ms purpose of restoring constitutional relations, rendered 
futile by the fact — if such should happen to be the case — 
that the Commander-in-chief, in the prosecution of Ms pur- 
pose to conquer rebellion and end the war, has, either tem- 
porarily or permanently, disturbed the relation between 
certain rebel masters and their horses and slaves. And since 
we are assured that the President is not to be embarrassed, 
we are prepared to look with more favor upon the plans of 
the Commander-in-cMef. 

What is that which he proposes ? To set free, by force of 
military power, and as a measure of offence and defence, the 
slaves of rebellious communities. In other words, there are 
in the rebellious communities, which it is the duty of the 
Commander-in-chief to subdue, a great number of persons 
actively engaged in supporting the war, by providing sub- 
sistence for the rebel armies. They are forcibly held to this 
service by the same men, and the same inimical authority, 
which are now assaulting the life of the nation. In the in- 
terest of the nation, and for the purpose of weakening the 
enemy, the Commander-in-chief proposes to disregard and 
invite the persons so held, to disregard this local authority, 
and cease to serve it. 

What is the objection to this ? It is scarcely possible to 
quote or condense Judge Curtis's statement, without dimin- 
ishing its plausibility ; but, in substance, he says that '^ the 
proclamation, if taken to mean what it in terms asserts, is an 
^ executive decree,' that at a certain time all persons held as 
slaves, in certain localities, shall be free '," that '' the per- 
sons who are the subjects of this proclamation, are held to 
service in the states where they reside by state laws, under 
authority as clear and unquestionable as the laws of any 
state on any subject ;" and that therefore "this proclamation, 
by an executive decree, proposes to annul and repeal valid 
state laivs." 

If the premises of this argument were sound, it would be 
more difficult to answer ; but it seems that, wdiile Judge 
Curtis is too skilful a logician to err in his method, he is not 
free from human fallibility to err in his matter. The fallacy, 
not to say sophism, lurks in the very head of the argument — 
th(^ first propositions, that the proclamation is an ^^ executive 



THE COMMANDER-IN-CHIEF. 21 

decree/' and that to free slaves, is to annul and repeal the 
laws under which they were held. 

It is true, that Mr. Lincoln describes himself, in the proc- 
lamation, as the executive, when, to have been technically 
correct, he should have called himself the commander-in- 
chief Undoubtedly, he used the word in that broader sense, 
in which whoever does an act, whether civil or military, is an 
executive ; and not in the popular sense in which ^' executive" 
is a synonym for '^ president." In other words, he meant mili- 
tary executive and not civil executive. But, however that may 
be, it is of no importance, and binds neither him nor us. We 
know his powers as well as he, and are equally able to give 
a designation to his acts. Had he chosen to call hirnself 
king of Great Britain, it would not have detracted from 
the true force of whatever he rightfully did as Com- 
mander-in-chief Had he called the instrument a general 
order, its real character would have been the same ; but 
Judge Curtis could not have startled the public ear by mis- 
calling it '^decree," a name which suggests emperors and 
absolutism. 

It " repeals and annuls valid state laws," says he. Were 
this the effect, or the attempt, it would be startling ; for the 
spectacle of a civil system, overturned, destroyed, repealed, 
or annulled, by arbitrary military force, is not an inviting one 
for the eyes of constitutional republicans, even where the 
system is that of an enemy. 

But such is neither the intent nor possible consequence. 
The act being military, is capable to produce only a military 
result. The military power suspends, but never destroys the 
law. So well has its effect been understood for ages, that it 
has grown into a maxim : Inter arma silent leges. But 
though military power never destroys the law, its very first 
and principal effect is to destroy rights and things existing 
under the law. It is this which constitutes war. It may 
also suspend the relation between persons and things, under 
such circumstances, that the right or relation can never 
be restored. Thus, military power may seize a man's house, 
and suspend his right to its occupancy ; yet, when the war 
ends, and the enemy retires from its possession, he will, if no 
treaty stipulation intervenes, find himself, by the very fact of 
peace, reinstated in aU his rights to his property. But if, in 



22 THE COMMANDER-IN-CHIEF. 

the mean timej the military power has destroyed the house, 
the owner will find himself debarred from its enjoyment, it 
is true, but, by the operation of the necessity which caused 
its destruction, and not by anything inherent in military law 
or power. The general rule as to immoveable property is, 
that peace restores the proprietor to his former rights, unless 
the terms of peace prescribe otherwise ; as to moveable prop- 
erty, the contrary rule, that peace confirms and perfects the 
title of the captor, prevails, subject to exceptions hereafter 
to be mentioned. 

What this proclamation, or general order, proposes to do, 
is, to suspend the relation between Eobert Toombs, a volun- 
tary white resident of Georgia, who is, by that fact, presump- 
tively a rebel, and Tom, his slave, who is presumptively loyal, 
so far as he is free to be anything. The civil status of Tom 
was slavery, because certain civil interests demanded it. His 
military status is to be freedom, because the general military 
interests demand it. This does not abolish slavery ; it only 
abolishes the slave. For though Tom may take advantage 
of his new status to remove beyond the reach of future con- 
tingencies, yet, when the martial law is removed, Mr. Toombs 
may purchase another slave in Maryland, or wherever else he 
can procure a legal title, and hold him, afterward, in Geor- 
gia, under the same law as before. 

It is unnecessary to inquire whether — the necessity of the 
occasion demanding it — the President might have done any 
act which would have rendered it impossible hereafter to hold 
slaves in Georgia ; or, whether the Congress, representing in 
war the deliberative and legislative sovereignty, might do such 
a thing. As to these questions there are differences among 
lawyers ; but it is not this, which the proclamation purports 
to do. The language used is — ^^ That, on the first day of Jan- 
uary, 1863, all persons held as slaves within any state, or 
designated portion of a state, the people whereof shall then 
be in rebellion against the United States, shall be then, thence- 
forward^ and forever, free ; and the executive government 
of the United States, including the military and naval au- 
thority thereof, will recognize and maintain the freedom of 
such persons, or any of them, in any efforts they may make 
for their actual freedom.'' 

The right, in time of war, to seize, destroy, convert, and 



THE COMMANDEE-IN-CHIEF. 23 

transfer, the property of tlie enemy, is uncontroverted. These 
rebels call these slaves property ; and were it proper for our 
government so to regard them, our right to appropriate or 
sell them would be undisj)uted. One point of Judge Curtis's 
cavil against the action of the Commander-in-chief is, that 
he has declared these slaves free, in advance of his ability to 
lay his hands upon them, and convert them into possession ; 
a ceremony required by the law of nations to vest in the 
captor of enemies' goods any transferable title. To this, 
several things may be answered ; and, first, if Mr. Lincoln 
fails to make good his declaration and promise, the only suf- 
ferer will be the slave, and I do not understand that it is in 
his interest that Judge Curtis complains. Second, the cus- 
tomary law of nations requires the belligerent, first to possess 
himself of his enemy's property, before he can exercise acts 
of ownership over it, not because of any lack of right in the 
belligerent, but because of a lack of physical ability to make 
good his right in any other way. The right of the belligerent 
is, to do his utmost to deprive the enemy of the use of his 
property ; as to irrational animals and dead matter, which 
form the bulk of all property, the utmost which can be done 
by the belligerent for that purpose, is to take possession of it 
himself. If the president were a magician, and could, by any 
effort of his art — by a smell of fresh hay, or other enchant- 
ment, potent with horses — ^inducethose creatures to trot out 
from their pastures, and come within our lines. Judge Curtis 
will not pretend* that would not, under the law of nations, 
be a lawful and complete capture. Now, the property in 
question here, is also a person, possessed of reason, speech, 
and power of action, and thus capable of becoming an ally in 
the matter of depriving the enemy of his goods. To reiterate, 
our riglit is, to deprive the enemy of his goods in every pos- 
sible way. The only possible way to deprive him of his horse 
and wagon, is to lay hands upon them — but w^e may reach 
his slave by proclamation, and invite him, as our ally and 
by our authority, to lay hands upon himself. "Whenever we 
may obtain possession of the horse, we have acquired a good 
title, which we may transfer to another. Whenever the 
slave has, under Mr. Lincoln's proclamation, done one vol- 
untary act inconsistent with his master's assumed right of 
full control over him, he has, as our agent and ally, taken 



24 THE COMMANDER-IN-CHIEF. 

possession of himself, and is, in advance, as the price of his 
alliance, transferred forever to himself. Up to this point, 
we consider the negro as property, because the enemy, against 
whom the argument is made, so treat him ; and we have a right 
to adopt their ground, so far as it can be made useful to hini ; 
and thus far the question has been one of right between bellig- 
erents. Now, when a captor has once obtained possession of 
enemies' goods, he, or his assignor, holds by a good, perfect- 
able title, i. e., a title which will become comj^lete by the re- 
turn of peace, without any treaty stipulation prescribing the 
contrary ; but until that time the title is liable to be lost by 
recapture, and the application of what is known in law^ as 
the jus postUminii. This right of postliminy, was a fiction 
of the Koman law, by which persons and sometimes things, 
taken by an enemy, were restored to their original status and 
ownership, immediately on coming again under the power of 
the nation to which they formerly belonged. By it, the re- 
turned son came under the power of his parent ; and the re- 
turned slave, the power of his master. (Halleck's Int. L. and 
L. of War, 866.) 

But, inquires the startled friend of the slave, is it possible 
that, by recapture, or any refined technicality of law, this 
freed-man can ever be lawfully returned to slavery ? I an- 
swer, emphatically, No ! The slave, whom we have hereto- 
fore considered merely as a chattel, now stands up and as- 
serts his manhood ; not as a newly-acquired right (for as be- 
tween the master and slave, the right of the latter to his 
freedom has always been complete), but as a right newly re- 
cognized by a powerful ally, heretofore bound to the master, 
to a silent acquiescence in his usurpation, but now released 
from that compact, and newly bound to the slave to ^^ main- 
tain " his freedom. This question is no longer one between 
belligerents simply, but is complicated by a new question — 
the claim of a man created in the image of his Maker, to 
enjoy civil liberty. The right of capture and recapture of 
ordinary goods rests on the same basis, to wit, that they are 
property by law of nature, and may be passively transferred 
from hand to hand. But the slave whom we capture as 
property, is, after his capture and the transfer to him- 
self of all the captured title of his master, no longer a 
chattel, but a man, insusceptible of recapture, except as a 



THE COMMANDEB-IN-CHIEF. 25 

prisoner-of-war, entitled to all the rights and privileges of 
such persons.* 

* The right under the laws of nations to emancipate an enemy's slaves 
cannot be doubted; especially, in view of the precedents cited in the notes 
following this. The opposite doctrine has never been seriously asserted 
except by ourselves, through John Q. Adams, while minister to England 
in 1820 ; and the authority of his great name is against it, for he declares 
" It was utterly against my judgment and wishes ; but I was obliged to 
submit, and prepared the requisite despatches." (Cong. Globe, 27th 
Cong. 2d sess. 1841-2 ; vol. ii., p. 424. See also his speeches of 26th 
of May, 1836 ; 7th of June, 1841 ; and 14th and 15th of April, 1842.) 
The right as a war measure has been exercised in modern times by Eng- 
land in the American wars of the Revolution and 1812 ; by France in 
St. Domingo in 1793-4 ; (Abolition d'Esclavage (Colonies Francaises) 
par Aug. Cochin, Paris, 1861, vol. i.,pp. 14, etc.;) and by Spain in Colom- 
bia, through General Morillo. (See New American Encyclopedia, art. 
Bolivar.) That slaves captured in war-r-even our own recaptured fugi- 
tives — are to be considered prisoners-of-war is established by the practice 
of this government. In 1836, Gen. Jesup engaged several fugitive slaves 
to act as guides and spies, and for their services gave them their freedom 
and sent them West. The administrations of Van Buren and Tyler 
sanctioned and approved his acts. In the same year, Louis, the escaped 
slave of one Pacheco, and who had fought against us, was captured. His 
master demanded him, but was refused, and the negro was set free. The 
President and Cabinet approved the conduct of Gen. Jesup, and after- 
ward Congress sustained their action by rejecting a bill to compensate 
Pacheco. In 1838 General Taylor captured a number of negroes said to 
be fugitive slaves. Citizens of Florida, learning what he had done, im- 
mediately gathered around his camp, intending to secure the slaves who 
had escaped from them. General Taylor told them that he had no pris- 
oners but prisoners-of-war. The claimants then desired to look at them, 
to determine whether he was holding their slaves as prisoners. The 
veteran warrior replied that no man should examine his prisoners for such 
a purpose ; and he ordered them to depart. This action being reported 
to the War Department, was approved by the Executive. The slaves 
were sent West and set free. 

" In 1838 many fugitive slaves and Indians, captured in Florida, had 
been ordered to be sent west of the Mississippi. Some of them were 
claimed at New Orleans by their owners, under legal process. General 
Gaines, commander of the military district, refused to deliver them up 
to the sheriff, and appeared in court and stated his own defence. His 
grounds of defence were, 'that these men, women, and children, were 
captured in war ; that, as commander of that military department, he 
held them subject only to the order of the national Executive ; that he 
could recognize no other power in time of war, as authorized to take 
prisoners from his possession. He asserted that in time of war all slaves 
were belligerents as well as their masters. The slave men cultivate the 
earth and supply provisions. The women cook the food and nurse the 
sick, and contribute to the maintenance of the war, often more than the 



26 THE COMMANDER-IN-CHIEF. 

The Eoman slave was held as a captive taken in war, and 
•whom, hy the then existing rule of war, the captor might 
lawfully have killed ; having spared his life, he was admitted 
to have a clear right to his person and services. This right, 
hased on pagan equity, was considered indestructihle. But 
the American slave is under no such obligation to his master. 
His liberty has been taken from him without his consent, by 
force and fraud, perpetuated by law and usage until the na- 
tion acknowledged the legality of his servitude. But when, 
even for an instant, his status as a slave is suspended, and 
he remitted to his natural rights as a man, there is no power 
on earth to take away his freedom, except by a repetition of 
the original fraud and force. Such an act the laws of na- 
tions abhor f and to prevent it, the '' executive government 

same number of males. The slave children equally contribute ^vhatever 
they are able to the support of the war. The military officer, he said, 
can" enter into no judicial examination of the claim of one man to the 
bone and muscle of another, as property ; nor could he, as a military 
officer, know what the laws of Florida were while engaged in maintain- 
ng the federal government by force of arms. In such a case he could 
only be guided by the laws of war, and whatever may be the laws of 
any state, they must yield to the safety of the federal government.' 
He sent the slaves West, and they became free." (House Doc. No. 225, 
25th Cong., 2d sess.) 

*By the treaty of 1783, the British agreed to take no slaves away : 
not with standing, Veat numbers were permitted to follow them. General 
Washington remonstrated against this as a hreacli of the treaty, and de- 
manded" their return. Sir Guy Carleton, acting for the king, admit- 
ted that his government was bound to make compensation, but resented 
with asperity the idea that he would return any of these men, saying it 
was ^' imfrimdly to his majesty to suppose" that he intended to have his 
officers take from "these negroes the liberty of which he found them pos- 
sessed:' (Sparks' Writings of Washington, vol. viii., p. 544, App.) 

Mr. Jelferson, complaining of some of the acts of Lord Cornwallis 
during the Revolution, makes the distinct admission that certain of them 
were palpable acts of war, in this language : " He destroyed all my 
growing crops, * * * he used, as vas to he expected, all my stock of 
sheep, cattle, and hogs, for the sustenance of his army ; * * * he also 
carried olf about thirty slaves. Had this been to give them their freedom, he 
wonld have done right:' (Letter to Dr. Gordon, Jeff. Works, vol. ii,, p. 
420.) In the well-known case of The Creole, certain slaves who had 
been put on board an American brig to go from Hampton Roads to New- 
Orleans, mutinied, killed a slave-owner, and compelled the crew to take 
the vessel into the Rritisli port of Nassau. The authorities, after an 
examination of the matter, detained nineteen of the negroes as connected 
with the murder, but permitted the rest to go or stay, as they pleased. 



THE COMMANDER-IN-CHIEF. 27 

of the United States, including the military and naval au- 
thority/' is pledged.^ 

The British government consented, on grounds of comity, to make com- 
pensation for the escaped slaves, but utterly refused to return them. (1 
Phillimore, Int. Law, 343.) In this decision they acted, doubtless, upon 
that view of the rights of negroes which was declared by Ch. J. Best, 
in the case of Admiral Cockburn, upon whose vessel some escaped slaves 
took refuge, to wit: "He was not bound to receive them upon his ship 
in the ifirst instance ; but, having done so, he could 7io more have foned 
themhack into slavery than he coidd have committed them to the deep" — Ibid., 
339. France has been, from the earliest times, particularly jealous of all 
infractions of her general law of liberty ; thus, while admitting the legal 
force of slavery under some circumstances, she has, in every instance 
where the strict letter of the bond has been evaded or relaxed, declared the 
freedom of the person claimed to be held to servitude under it. Bodinus 
(L. i. de Rep. p. 41, cited in I Philli. 344) relates two examples. The 
first was the case of a Spanish ambassador who brought a slave in his 
retinue. The slave, in spite of all remonstrance, claimed and obtained 
his freedom on entering in the French dominions. In the second instance, 
a Spanish merchant, happening to touch at Toulon, on his way to Genoa, 
with a domestic slave among his servants, when " hos2)es, re intellecta^ servo 
jjersuasit, ut at lihertatum provocaret f the merchant complained that he 
had, Jjona fide, purchased the slave ; that he was not bound by the law of 
France ; that he was not resident there, but happened only to touch at a 
French port on his passage to Genoa, and that at least he ought to be 
remunerated for the purchase-money of the slave ; but his remonstrance 
was fruitless, and he made a private bargain loith his slave for the con- 
tinuance of his services. In the cases of " Francisque," brought from 
Hindostan to France in 1558, (Denisart, Decisions Nouvelles, torn. 3, p. 
406, tit. Negre, n. 45) and of " Jean Borcaut," a negro Creole (Causes 
Celebres, vol. xiii.) the same general law, that, whenever a slave escapes 
for a moment from the power or control of his master, he becomes, by 
the law of nature, free, was maintained. The force of these examples is 
not weakened by the reflection that they are furnished by what was, at 
the time, a despotic state. Such was the law of liberty prevailing under 
an absolute monarchy, during what we complacently style the dark ages. 
Poland, also,during her existence as an independent kingdom, maintained 
the same doctrine. (Ambassadeur et ses Fonctions, par M. de Wicque- 
fort, 1. i., p. 418.) 

* It has been decided, even in the courts of slave states — and I under- 
stand Judge Curtis, in his admirable opinion in the Dred Scott case, to 
approve — that, when the master voluntarily takes his slave beyond the 
jurisdiction of the local law by which he holds him, the stat^is of slavery 
is destroyed, can never be restored, and the man is forever free. Now, 
these rebellious masters have voluntarily made it necessary to introduce 
within the local jurisdiction a superior authority, the known effect of 
which — for every man is presumed to know the law, and intend all the 
legal consequences of his acts — is to disturb and change the status of the 
slave ; for, the laws of war will permit us to take cognizance of only two 



28 THE COMMANDER-IN-CHIEF. 

But to return to the question whether the proclamation 
repeals or annuls state laws ; let us suppose another case 
illustrative of the same point. The state of Greorgia has on 
her statute-book a militia law, under which all citizens capa- 
ble to bear arms are enrolled, and by force of which they owe 
service and obedience to the state and their officers. This 
claim to service and obedience rests on precisely the same 
basis as the claim of the master upon his slave, i. e., " valid 
state law." 

These militia are now in arms, and being used against the 
government. Would it be regarded as unconstitutional for 
the military authority of the nation to declare these men ab- 
solved from military allegiance to the state of Georgia, and 
invite them to desert ? Or would it be supj)osed that by this 
act the government had "annulled or repealed'' the militia 
law of G-eorgia ? 

It must be plain from what has been said, that it is not 
the law, but something existing under it, which is destroyed 
by the overruling force of martial power. There is nothing 
very startling about the matter, then, for the very first effect 
of all war is the disturbance and destruction of civil right. 

If we are not mistaken in supposing that it is now clear 
that emancipation by the military power, as a military meas- 
ure, does not annul or repeal state laws, and differs from 
the result which always ensues where martial law j)revails, 
only by having a wider extent, it remains to inquire whether, 
standing upon the clean footing of a war power, it is in ac- 
cordance with the laws of war,'-' and demanded by the neces- 
sities of the occasion. 



descriptions of persons, viz., enemies or friends. The slave being thus 
made free, as a consequence of his master's voluntary act, ought not to 
be remitted to slavery in the one case more than in the other. (See Jose- 
phine V. Poulteney, 1 Louis. An. K, 329.) 

* The more enlightened opinion seems to be that, as between fair and 
legitimate enemies, it is a duty of honor and conscience which each owes 
to himself, not to use unworthy means to seduce the subjects of the other. 
But the case is dilferent with rebels, to whom no one rightfully owes 
allegiance, and who are themselves unfaithful. Notwithstanding, the 
British did, in the war of 1812, seduce and take away large numbers of 
slaves, and although, b}^ the express terms of the treaty of Ghent, they 
made compensation for some, it was only such as were, at the exchange of 
ratifications of the treaty, still within the places to be delivered up to 



THE COMMANBER-IN^CHIEF, 29 

What is there in it contrary to the laws of war ? It is 
said that servile insurrection will ensue, and that non- 
combatants and innocents will suffer. Such is not the neces- 
sary consequence ; and -who has the requisite knowledge to 
affirm that it will take place ? The object is to weaken the 
enemy by reducing his means of sustenance, and if insurrec- 
tion by the freed laborers should transpire, it will be one 
of those unavoidable misfortunes which Grotius illustrates 
by the case of rapine in a captured town ; and the destruc- 
tion of women and children in. a pirate-ship. 

Moreover, by the very terms of the proclamation, it is put 
in the power of the enemy himself to avert the danger by a 
return to duty. Would it be considered by any one, contrary 
to the laws of war to encourage, in the centre of Alabama, 
resistance by loyal white men to the confederate government? 
And, if not, what is there about a black insurrection so much 
more obnoxious to the law of nations than a white insurrec- 
tion, except the bare possibility that the debased black — ^for 
whose continued debasement, in the midst of Christian civili- 
zation, the enemy alone is responsible — may be more cruel 
in his proceedings ; and which result, the enemy, but for 
misguided persistence in treason, might surely prevent ? 

the United States. It was not even claimed, by our government, that 
those who had been emancipated and sent beyond United States limits 
during the war, were to be paid for. The English raised a question 
whether, under the terms of the treaty, slaves still upon British vessels, 
lying, at the time of the ratification, in American waters, were intended 
to be included ; and this question was, by the convention of 1818, re- 
ferred to Alexander of Russia. The emperor says, in his award, that 
" it is upon the construction of the text of the article as it stands, that the 
arbitrator's decision should be founded," and he construes the text 
against the British view. There being some objection still made by Sir 
Charles Bagot for his government, the emperor makes this supplemen- 
tary explanation : " The emperor having, by mutual consent of the two 
plenipotentiaries, given an opinion founded solely upon the sense which 
results from the text of the article in dispute, does not think himself 
called upon to decide any question relative to what the laics of acar permit or 
forbid to belligerents." 

The irresistible inference from the language used is, that Alexander 
considered that the law of nations permitted the sequestration and 
emancipation of an enemy's slaves; that such persons, when emancipated, 
cannot be reclaimed; and that they are not subjects whom it is inmioral 
to solicit to treason. His opinion is entitled to all the more weight since 
he was the largest slave-owner in the world, and specially interested in 
having the law of nations construed otherwise. 



30 THE COMMANDER-IN-CHIEF. 

Judge Curtis also objects that this proclamation will free 
the slaves of persons innocent of participation in rebellion. 

We are to act u]3on facts as we find them, and it does not 
appear that there is any considerable number of such per- 
sons, or that it is practicable at j)i*esent to discriminate in 
their favor. 

It is possible, now, to deal only with communities. Indi- 
vidual justice must wait for calmer times. The j)roclama- 
tion does all that can be done in this respect, and promises a 
recommendation to Congress to provide for compensation to 
men who have remained loyal, for the loss of their property, 
including slaves. The loyal men of the South must bear the 
inconvenience which the war brings upon them, as well as 
those of the North ; and it is a remarkable fact, that all the 
objections to emancipation come from the North, while all 
the loyal men of the South, from whom we can hear, like 
Hamilton, Holt, Eousseau, and Johnson, are its supporters. 

Is the measure demanded by the necessities of the occa- 
sion ? 

The same considerations belong, in a considerable degree, 
to this, and the question of expediency, and they may 
be treated together. As has been before remarked, the 
necessity of the occasion is, the preservation of national life, 
which is, the democratic idea. The war appears to be one of 
essential ideas. It is not confederate swords and muskets 
which threaten the existence of the nation, for these weapons 
may be destroyed, or used indiscriminately on either side of 
the quarrel; as, also, may the men who" wield them. But 
the antagonistic principles which underlie and impel the 
stroke of battle, are irreconcilable. 

Fair Oaks, Antietam, Shiloh, and Bull Run, are related 
to slavery, just as the branches of a tree are related to its 
roots, or tjfie assassin's blow to the murder in his heart. 
Slavery, which is, by its very nature, war with liberty, has 
simply remitted to the surface of politics some of its inhe- 
rent tendencies. 

These tendencies and principles had entered into a compact 
of peace witli us — the Constitution — and while peace re- 
mained, they were beyond the reach of interference. But the 
aristocratic idea, impelled by the necessities of its aggressive 
nature, has inaugurated war, and by that act become amen- 



THE COMMANDER-IN-CHIEF. 31 

able to the code of war, which has for its first maxim — 
Destruction to the cause of war. 

CorrespoB cling to this interior and essential necessity, for 
the destruction of slavery, there is a more external and prac- 
tical necessity, which all can see. 

It is necessary to distract the attention of the enemy from 
operations in front ; it is necessary, also, to weaken him, by 
seducing from his service the productive labor by which alone 
he is enabled to support his armies. 

Is it expedient to obey this necessity .^ Whatever is really 
necessary must certainly be expedient, or the greater no 
longer includes the less. Whether, upon all grounds, it was 
entirely expedient, or whether the matter was one of balan- 
cing reasons, it does not enter into my present plan to con^ 
sider. I have no doubt that, on grounds of expediency, it is 
the wisest and most statesman-like act of this administra- 
tion. The strong language of Prof Parsons is, "I leave 
this question to the President, for he is honest and capable ; 
he has considered it long and painfully. However wise I 
may be, or Judge Curtis may be, on this subject, the Presi- 
dent is wiser, or all rules of probability fail.'' 

'■'■ I guess this is the law,'' said an indiscreet j)ractitioner, 
before the chief-magistrate of a western village. ^^ I guess it 
ain't," said the irate dignitary, " and I have the last guess." 

The Commander-in-chief, who must bear the final respon- 
sibility, and is clothed for the occasion with all the discretion 
of the nation, has exercised it finally. '•'' 

If the premises and arguments so far are correct, we 
have adduced these conclusions — First : Abraham Lincoln, 
as Commander-in-chief in time of war, embodies all the ex- 
ecutive war powers of the nation. Second : These powers are 

=* Judge Curtis objects that, the proclamation extends beyond the ac- 
tual field of operations, and is to take effect in future, instead of the 
present, thus usurping the legislative function. It is only necessary to 
suggest in answer, first, that when used in favor of rebellion, the strong- 
est argument loses its force ; second, that every plan laid in the present, 
to be executed in the future, is legislative in the same degree ; and, 
third, that the field of operations is wherever a rebel lives. The terri- 
tory is ours, and the federal jurisdiction extends over every foot of it. 
Moreover, the federal flag is now planted within the borders of every 
rebel state, and we are, presumptively, in actual command of every re- 
bellious locality. * 



32 THE COMMANDER-IN-CHIEF. 

extra-constitutional^ having their origin in the nature of 
things, and are recognized as an established code by all civil- 
ized nations. Third : Principal among them, is the right 
to end war and obtain security for the future, by destroying 
the cause of the war. Fourth : The proclamation in ques- 
tion is intended to have that effect, and is considered neces- 
sary to that end by the nation, speaking through its supreme 
military authority. Fifth : The ownership) of slaves is to 
be distinguished from the right to own slaves. Sixth : The 
former was not one of the constitutional relations which bound 
this people, and therefore, to destroy the ownership of slaves 
will not render a restoration of the tJnion, under the Consti- 
tution as it is, imj)ossible, any more than the destruction of 
the ownership of horses will have that effect. Seventh : 
The military power, acting through emancipation, does not 
pretend to destroy the legal right to own slaves, and is not, 
therefore, obnoxious to the charge of annulling or repealing 
state laws. Eighth : It is not against the laws of war to 
do a necessary act, even though it is possible, or, in extreme 
cases of necessity, even probable, that some unhappy conse- 
quences may come to innocent persons. Ninth : It is by no 
means a necessary consequence of freeing slaves that harm 
shall come to non-combatants and innocents ; and such 
accidental result, should it ensue, will be chargeable solely 
upon the enemy who might have averted it. Tenth : 
In short, the right to free all persons held as slaves in re- 
bellious states, on the 1st of January, 1863, is a valid 
war power ; it is one necessary to be exercised ; and its 
exercise is not forbidden by the Constitution or the laws of 
war. 

Many other suggestions against the j^o'^^'sr of the Com- 
mander-in-chief arc thrown out by his ingenious critic ; but 
they will all be found to be auxiliary and dependent upon his 
main objections, which have already been answered. Such 
being the case, it is better to leave the intelligent reader to refute 
them for himself by an application of the principles already 
stated.": Certain of them, however, should perhaps be specially 
adverted to. Thus, Judge Curtis refers to Mr. Lincoln's 
declaration — when speaking of the then proposed Proclama- 
tion of Emancipation — that he supposed he had the right to 



THE COMMANDER-IN-CHIEF. 33 

take any measure '''to subdue the enemy ;" and this phrase, 
" to subdue the enemy/' is reiterated by the author so fre- 
quently, in such connection, with such inuendo and empha- 
sis, that the startled reader at last inquires whether it is the 
ivoi'ds^ or the thing, which gives him such great uneasiness. 
He also compares the Commander-in-chief to generals in the 
field, intrusted with a certain expedition, in such a manner 
as to make one ask if it can be possible that he wishes to 
degrade, in the mind of the reader, the functions of that 
high office. It is true, that the martial power of the Com- 
mander-in-chief is of the same kind and degree as that of a 
commanding general in the field, i. e., each has, when the 
emergency demands it, the power to do any and all things 
not forbidden by the Constitution, humanity, or the laws 
of war. But the emergency of the general in the field is 
fleeting ; it embraces a j)oint of time, or a certain enterprise, 
and his department is his field. The field of the Comman- 
der-in-chief includes the remotest point under federal juris- 
diction, as well as the seas ; the enterprise committed to him 
is the entire war ; the emergency under which, and with ref- 
erence to which, he must act, is the restoration of order, na- 
tional supremacy, and assured peace. This emergency is not 
temporary, but is constantly with him. It has neither past 
nor future ; it is, during war, an ever-present emergency. 
Thus, it is impossible to measure the powers of the general, 
in his field, by those of the Commander-in-chief, in his 
field, or vice versa. The powers and acts of each are to be 
scrutinized in the light of the emergency peculiar to his 
sphere and employment. The Commander-in-chief differs 
from all subordinates, then, just as the greater from the less ; 
the superior from the inferior; the whole from a part. 

The professional reader will be embarrassed to discover 
how the case of Mitchell vs. Harmony (13 How., 115), which 
Judge Curtis cites, can apply to the power of the Command- 
er-in-chief to take the property of an armed enemy. That 
was an action against a lieutenant-colonel for seizing, unne- 
cessarily, the property of a loyal citizen, and it would almost 
seem that the Judge had forgotten that the persons whose 
property it is now proposed to take, are armed rebels, who 
have no standing except in the tribunal of ivar. 

Every reader will be amazed and indignant when, after 



34 THE COMMANDER-IN-CHIEF, 

seeing it declared that the " military coniinander" exceeds 
his powers, when "he controls the persons oy proj^erty oi cit- 
izens beyond the sphere of his actual operations/' he discov- 
ers, by the context, that J efferson Davis, et id omnes genus, 
are the " citizens" spoken of. 

The declared purpose of the pamphlet is to protest against 
infraction of the civil liberties of men in the North, who, if 
they are guilty, are within the reach of process of law ; but 
the whole complexion of the argument changes, when it is 
urged to support rights which the rebel, hy a resort to war, 
has utterly forfeited. 

I have found it impossible to do more within this space 
than outline the argument ; it is to be hoped that abler pens 
will work at the elucidation of these great questions. The 
same treason and falsehood which confront our soldiers in 
the field, is skulking here — seeking to shelter itself behind 
forms of law until it can organize and perfect its schemes of 
villany. Loyal lawyers must drag it forth : it must have 
no refuge here. An enlightened and free profession should 
regard it as a sj)ecial duty to refute and denounce, every- 
where, the lying justifications and evasions by which rebel- 
lion hopes to escape consequences. If this is done ; if the 
people are equal in courage to the demand of this greatest oc- 
casion of the world's history ; if the government is steady, 
resolved, and, above all, bold ; the crisis will be jmssed in 
safety ; and America, instead of being overthro-^m by this 
avalanche of treason, darkness, lying, and all evil, will over- 
bear it all, and j^lant the standard of liberty higher still — a 
beacon of hope to the oppressed of all the world. 



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